Chapter 13: Does a Work First Orientation Violate the ADA When Applied to People with Disabilities?

      Many TANF programs are using a Work First philosophy.  Though the philosophy is carried out in a number of different ways, the common theme is a strong emphasis on helping or requiring individuals to find unsubsidized employment as quickly as possible, and a minimal emphasis on education and training.  Job search is often mandatory, and if work is not found within a short period of time, clients may be routed into unpaid community service.  Job search may require people to pound the pavement on their own seeking work or make a required number of telephone calls to employers listed in the phone book or in classified advertising, and document compliance with these requirements by submitting business cards from employers or other proof of compliance.  Frequently, education and training are offered only when combined with work, and education and training is short-term.  Some programs require everyone to participate in job readiness or job search activities, and in-depth screening and evaluation is given only to those who don’t find work during this process.  In its most extreme version, Work First means that individuals are required to engage in a job search for a specified period of time before benefits are authorized.[807]

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      A. The Discriminatory Impact of Job Search

      Requiring individuals to search for jobs before authorizing benefits may have a particular exclusionary effect on people with disabilities if necessary program modifications and supports are not provided. If people with disabilities are not provided with necessary modifications such as accessible transportation to conduct job search activities, TDDs and auxiliary aids and devices to use the telephone to call job listings, or help with reading or filling out applications when disabilities limit the ability to do these activities, mandatory pre-benefit job search is an eligibility criterion that is likely to screen out people with disabilities from benefits programs.[808] It also has the effect of providing an opportunity to participate in the TANF program that is not as effective as that provided to others;[809] is a method of administration that has a discriminatory effect;[810] and impairs the objectives of the program for people with disabilities.[811]  Because mandatory pre-benefit job search operates as a gate to accessing benefits, it may present a particularly strong case for a denial of meaningful access claim when modifications and support services are needed by people with disabilities and not provided.  Moreover, when mandatory pre-benefit job search takes place before TANF programs have much information about participants and their disabilities, including knowing who needs modifications and support services in the job search process, this type of discrimination is inevitable.

      Even when job search is not required before benefits are authorized, it may have a discriminatory effect on people with disabilities.  Job search is a program in its own right that must provide meaningful access to and make reasonable modifications for people with disabilities.  Some people with disabilities, such as learning disabilities and mental retardation, need additional time to complete tasks and additional instruction.  Inflexible rules in job search programs that don’t allow people with these disabilities to receive additional time, explanations or assistance, may deny an equal opportunity to benefit from job search programs,[812] result in programs that are not as effective in providing an equal opportunity to obtain the same result[813] and violate other Title II requirements.

      Discrimination may also occur if people with disabilities are routed into programs where they have less opportunity than others to receive education and training and develop job skills because TANF workers make stereotyped decisions about their abilities.  It could also occur because TANF programs do not provide supports such as tutors, equipment, or extra help that is needed for people with disabilities to be able to participate in programs that do provide such training and skills.

      Some types of Work First programs may be more difficult to challenge under Title II.  If education and training are not offered to anyone in the TANF program until after a job search is conducted and is unsuccessful, it will be difficult to argue that people with disabilities are subject to discrimination simply because they don’t receive education and training immediately,  and are required to engage in Work First activities first.  In addition, it is probably not discriminatory under the ADA to require people who can’t find paid jobs to participate in activities other than education and training, such as community service.  Though many people with disabilities will be unable to find jobs and will end up in community service as a result, there are also probably many people without disabilities who will not find jobs, and thus it may be difficult to demonstrate a disparate impact.  Moreover, if those who find work as a result of job search are not receiving TANF benefits, they are arguably not an appropriate comparison group in a discrimination claim. 

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      B. Reasonable Modifications to Mandatory Pre-Benefit Job Search and Other Work First Programs

      One possible modification to Work First programs would be to provide assistance, accessible transportation, and other reasonable modifications that would enable people with disabilities to have an equal opportunity to benefit from job search, job readiness, and other similar activities.  Another option would be to shorten or waive pre-benefit job search entirely for individuals with disabilities when it is obvious that they won’t find jobs as a result.  Another possibility is to have people with disabilities participate in Work First activities for the same length of time as others, but process their applications for benefits before job search or job readiness requirements are completed on the theory that people with disabilities are less likely to find jobs through these programs and should not have to wait to receive benefits they need.

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      C. Do TANF Programs Have an Obligation to Investigate the Reasons for Non-Compliance with Work First Requirements?

      When individuals fail to satisfy Work First program requirements, welfare programs have an obligation under the Title II reasonable modification requirement to investigate the reason for non-compliance and, where there is a disability-related reason, provide reasonable modifications and program interventions to make compliance possible.  If programs do not investigate the reason for non-compliance they will undoubtedly discriminate against some people with disabilities because some non-compliance, will be caused by disability, the failure to provide modifications for a disability, or both.  This is particularly true when the consequences of non-compliance with job search are sanctions or a denial of benefits.  This type of ADA claim is compelling because Work First activities occur early on in the TANF process, when programs in most cases will not have conducted disability assessments and therefore know very little about whether participants have disabilities.  The likelihood of failing to provide needed modifications and support services to people with disabilities who need them is therefore particularly high.

      This type of legal argument can be based on a number of Title II requirements, one of which is Title II’s requirement that public entities make reasonable modifications in practices and procedures “when necessary to avoid discrimination.”[814] This language indicates that reasonable modifications that would prevent non-compliance must be provided before an individual with a disability is found to be non-compliant with Work First requirements and therefore not a  “qualified individual” who is eligible to receive benefits.  In addition, advocates can argue that the obligation to provide program modifications to avoid discrimination, coupled with the prohibition on using “methods of administration” that have a discriminatory effect,[815] requires TANF programs to investigate the cause of non-compliance with program requirements and to work with individuals to address non-compliance even when TANF recipients have not asked for the modifications they need before the non-compliance occurred.

       Additional support can be drawn from a line of cases decided under the Federal Fair Housing Amendments Act of 1988 (FHAA),[816] a statute closely modeled on Section 504 of the Rehabilitation Act, which prohibits discrimination against people with disabilities in housing.  A line of cases has held that when tenants with psychiatric disabilities violate lease provisions by destroying property or being physically or verbally abusive and this behavior is related to their disabilities, landlords cannot simply evict these tenants.  They have an obligation to provide reasonable modifications that may remedy or alleviate the problem, such as giving the tenant an opportunity to obtain counseling or providing a mediator to resolve disputes, even if the tenant never asked for these modifications until after eviction proceedings began or after the tenant sued for discrimination.[817]  Many of these cases rely on the legislative history of the FHAA, which states that in cases where a tenant poses a direct threat to others, “if a reasonable accommodation could eliminate the risk, entities covered under this Act are required to engage in such accommodation.”[818]

      Advocates should note that these cases differ in some respects from many Work First compliance issues.  Most of these cases involved allegations that the tenant posed a threat to others.  Both the ADA and Section 504 specifically require modifications to minimize the risk before any adverse action is taken against a person with a disability on the basis of a safety risk or threat to others.[819]  Most non-compliance with Work First and other TANF requirements will not involve non-compliance based on a safety risk or threat to others.  Nevertheless, the basic principle in these cases, that disabilities can be the cause of non-compliant behavior and that it may be discriminatory to deprive people with disabilities of a benefit on the basis of such behavior when those symptoms can be reduced or eliminated with reasonable accommodations, is consistent with the “necessary to avoid” language in Title II.

      Advocates should also be aware that in the employment arena, the EEOC has taken a different approach to disability-related non-compliant behavior.  EEOC Guidance states that employers may discipline employees with disabilities who violate workplace conduct standards even when the conduct is the result of a disability, as long as the workplace standard is job-related and consistent with business necessity.  However, the Guidance also makes clear that employers must provide accommodations to these employees in the future that help them meet the workplace standard.[820]  Nevertheless, there is a significant difference between these employment cases and Title II claims on behalf of clients in the TANF program.  Advocates can argue that the EEOC Guidance does not provide the applicable standard for TANF programs under Title II.  The EEOC’s different treatment of employees’ past conduct and employers’ future obligations is derived from the nature of the Title I reasonable accommodation obligation, which the EEOC states is “always prospective.”[821]  As employees are generally required to request reasonable accommodations to trigger an employer’s obligation to provide them under Title I,[822] the EEOC’s approach to misconduct caused by disability can be understood in the context of Title I, because employees don’t usually ask for permission from an employer before breaking work rules.   In contrast, Title II requires state and local government programs to evaluate programs and services for accessibility and make program changes even in the absence of requests by people with disabilities. Thus state and local government programs should be required to provide reasonable modifications, in the form of investigating non-compliance with program requirements and attempting to rectify problems, before taking adverse action against TANF recipients.

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      D. Would Modification of Work First Activities be a Fundamental Alteration?

      Providing supports to people with disabilities so that they can participate in mandatory pre-benefit job search would be a reasonable modification in most instances.  It does not change the requirement that individuals participate in mandatory pre-benefit job search, but rather helps people to satisfy this requirement.

      As for shortening or waiving mandatory pre-benefit job search, advocates can argue that it would not be a fundamental alteration of a TANF program when there is no realistic chance that an individual will find employment without receiving training and other services first.[823]   Indeed, some states exempt individuals from job search or job orientation requirements when the agency believes that an individual will not benefit from them.[824] If this type of argument is made, advocates will have to grapple with the question of whether to make the argument on behalf of particular individuals with disabilities, or groups of people with particular disabilities.  The second approach may pose a danger of stereotyping and encourage TANF programs to make the same types of generalized assumptions about the abilities of people with disabilities that advocates seek to prevent in many other situations.[825]

      The real difficulty with this type of discrimination claim is proving discrimination.  As many people without disabilities also stand little chance of obtaining employment from job search or job readiness programs alone, disparate impact on people with disabilities may be difficult to prove.  The failure to find a job is not proof that these programs were futile for individuals because they have disabilities.  In addition, even when Work First programs are of little benefit to anyone, advocating to remove people with disabilities from these programs gives programs very little incentive to change so that people with disabilities can participate and fully benefit from them.

      Enabling legislation and other state TANF program materials describing TANF as a benefits program for needy individuals helps to support an argument that modifying and even waiving or eliminating pre-application job search for people with disabilities would not alter the nature of the program. Modifications that help people with disabilities search for work, such as transportation assistance, help with identifying appropriate jobs for which to apply, and other assistance in the job search process would also be consistent with that purpose.                     

      TANF programs may take the position that waiving mandatory pre-application job search and other Work First requirements conflicts with the federal PRWORA purpose of ending the dependence of needy families on benefits.  This, however, is not an accurate characterization of PRWORA’s purpose.  PRWORA’s purpose is to increase flexibility of states in programs designed to “end the dependence of needy parents in government benefits by promoting job preparation, work and marriage,”[826] which does not conflict with waiving pre-application mandatory job search or other Work First requirements. 

      States may be resistant to extending the duration of job readiness and job search programs for individuals with disabilities because PRWORA has stringent limits on the number of weeks that count toward the state’s work participation rates.[827]  They may argue that extending job search and job readiness will make it more difficult for the state to meet work participation requirements and increase the risk that the state will be sanctioned.  But because states have enormous flexibility in who is included in federal work participation rates,[828] this argument is not a strong one.